Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
Walking the Talk: Human Rights, Access to Justice and the Fight against
Poverty
Dan Banik
INTRODUCTION
The past couple of decades have witnessed growing interest in linking poverty
reduction efforts with improved access to justice. With the UN Millennium
Declaration (2000), world leaders appeared to endorse the idea that the abolition
of poverty was in reality a matter of international redistributive justice. And 189
countries reaffirmed their commitment to do their utmost to help individuals and
groups facing ‘the abject and dehumanizing conditions of extreme poverty’ and
committed themselves ‘to making the right to development a reality for everyone
and to freeing the entire human race from want’.1 Thus, numerous scholars,
international agencies and aid practitioners began to advocate in the 1990s, a
closer linkage between human rights and economic development. They claimed
that a human rights focus ensures that the developmental process is correct, both
morally and legally, and helps build stronger national and local institutions based
on genuine social mobilisation and accountability. Some argued that the human
rights-development linkage forces development practitioners to confront the tough
questions of their work: matters of power and politics, exclusion and
discrimination, structure and policy (Uvin 2004). Others argued that the
astonishingly high levels of global poverty required revisiting its root causes,
including the role of affluent nations. Accordingly, the existence of poverty in a
1
http://www.un.org/millennium/declaration/ares552e.htm
1
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
world of plenty, they argued, such be viewed as a ‘violation of human rights’
(Sengupta 2005; Pogge 2005).
Two approaches in particular – the human rights-based approach to
development (HRBA) and the legal empowerment of the poor (LEP) – have been
promoted and applied by a set of international, national and local organisations in
their attempt to promote development and combat poverty. These approaches aim
at reforming conventional (needs-based) developmental efforts, which are
criticised for treating the poor as passive receipts of welfare rather than active
participants and agents of change. With an emphasis on respecting, protecting and
promoting the human rights of people living in poverty, these approaches have
focused attention on the actual process and means of development, which they
argue should aim to empower marginalised individuals and groups to participate
in decision-making and holding powerholders to account. By comparison, they
argue, that conventional development strategies have failed to substantially reduce
poverty as they have been excessively concerned only with the end results.
Despite their obvious merits, both HRBA and LEP have been labelled by
their critics as appealing buzzwords that give the impression of radical change but
delivery very little in practice. The increased frequency and ease with which
HRBA and LEP have been used by various agencies, has also been criticised for
betraying the complex challenges that thwart the realization of basic human rights
for people living in poverty. And the constant desire to introduce new terms and
approaches has not only flooded the development discourse with jargon that is
difficult, if not impossible, to operationalise, but scholars and activists around the
2
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
world worry that there is limited empirical evidence available to suggest that such
concepts are being rigorously applied by those who are responsible for designing
and implementing aid-driven development programmes. Critics thus argue that
behind the scenes lies a multitude of voices, interests and perspectives that draw
upon very different conceptual understandings of poverty, rights, and the
relationship between the two.
I begin this essay by briefly and critically discussing the main features of
the HRBA and LEP approaches in relation to development and poverty reduction.
There is now a growing volume of literature on the difficulties of operationalising
these approaches. My aim is the opposite. I wish to identify and highlight a set of
efforts by a wide range of actors at national and local levels using key elements of
the HRBA and LEP that yielded numerous positive results. Thus the empirical
focus here is on various initiatives that are aimed to promote the right to food in
India. These include a series of petitions handled by the Indian judiciary starting
in the mid-1980s that brought national attention to the persistence of extreme
hunger and starvation deaths in many parts of the country, and the role and duties
of national and regional governments to provide adequate assistance to
households vulnerable to hunger. While the initial verdicts by the courts in the late
1980s and early 1990s generated considerable media interest on the issue of
undernutrition and starvation, the ensuing recommendations of the judiciary were
largely ignored by the political and administrative leadership at both central and
state levels. By comparison, I also examine the basic conceptual frameworks of
the LEP and HRBA approaches in light of an on-going case on the right to food in
3
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
the Indian judicial system, which has been championed by civil society
organisations and that – despite the awaited final verdict – has resulted in
significant and positive changes in policies and programmes on food policy in the
country. The overall aim of this essay is to identify the conditions under which
human rights-based and legal empowerment approaches can be useful in
promoting the access to justice of people living in poverty.
PART 1
HUMAN RIGHTS AND LEGAL EMPOWERMENT FOR POVERTY
REDUCTION
The development discourse in the past couple of decades has witnessed growing
interest in viewing poverty through a human rights lens. This has largely
corresponded with the increased frustration and impatience over the ability of
conventional ‘needs-based’ or ‘economic growth-based’ developmental
approaches to deliver quick and long-lasting impacts on poverty reduction in large
parts of the globe. Since the 1990s, various attempts have been made to articulate
what a human rights-based approach to development (HRBA) actually means.
Given the involvement of a wide variety of development actors, organisations and
academic disciplines, the HRBA has appeared to be a broad collection of ideas
and practice centred on a set of core human rights principles. These include
participation of the poor in decision-making, and ensuring that state and non-state
actors are aware of the importance of, and practice, social inclusion, nondiscrimination and enhanced accountability of power-holders in the discharge of
4
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
their duties. Hence, there is now general acceptance of the idea that conceptually
the HRBA entails a process of human development that is normatively based on
international human rights standards and operationally aimed at promoting and
protecting human rights (OHCHR 2006). The main value added of the HRBA,
according to its supporters, is that the approach creates claims and not charity
(Uvin 2004, 129) and that it promotes the sustainability of development work by
empowering marginalised peoples with the ability to ‘participate in policy
formulations and to hold accountable those who have a duty to act’ (OHCHR
2006). At the same time, the universality of human rights is highlighted, in
addition to the principle of ‘progressive realisation’ of rights in development,
which means that given resource constraints, not all problems of all people must
be tackled at once.
One of the early supporters of the HRBA and a former senior official of
UNICEF, argues that human rights are important (and differ from conventional
need-based approaches) because they represent specific relationships between
individuals (who have valid claims) and others (e.g. individuals, groups or
institutions) that possess the duty to respect, protect and fulfil human rights
(Jonsson 2003). And ‘Except for very young children, all individuals have both
valid claims (rights) and duties’ (Ibid: 16). By comparison, development
approaches that emphasise basic needs do not recognise the idea of a duty bearer,
with the result that no one has a clear-cut responsibility to meet the needs of the
poor and protect their rights. Within the HRBA framework, the poor do not lose
their rights when they are incapable of claiming them (fulfilment of rights may be
5
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
compromised), as human rights are considered universal, inviolable and
inalienable. The HRBA consequently emphasises the principle of equality in that
community resources must be shared equally ensuring that access to various
services are enjoyed by all. By comparison, the basic needs approach often tends
to place greater emphasis on acquiring additional resources to improve the access
that marginalised groups in the population have to various basic services. Thus,
while conventional development approaches do not necessarily recognise ‘wilful
or historical marginalisation, a human rights approach aims directly at
overcoming such marginalisation’ by getting more actively involved in the
political discourse on such issues (Ibid, 20).
When examined in relation to conventional need-based approaches, the
HRBA also differs with respect to its emphasis on the process of development and
the manner in which development policies are implemented. In other words, ‘the
means, the processes, are different, even if many of the goals remain the same’
(Uvin 2004, 129). While basic needs can often be met through ‘benevolent and
charitable actions’, the HRBA is based on ‘legal and moral obligations to carry
out a duty that will permit a subject to enjoy her of his right’ (Jonsson 2003, 20).
And this implies that a duty bearer must accept the responsibility of taking
rightful action and be motivated by a desire to promote justice, features that is
negated by the basic needs approach’s emphasis on charity and benevolence (ibid.,
20, 21).
Based on the above two sets of issues, the Office of the High
Commissioner for Human Rights (OHCHR 2006) argues that human rights
6
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
‘contribute to human development by guaranteeing a protected space where the
elite cannot monopolize development processes, policies and programmes’.
Moreover, by linking human rights to development, development practitioners are
in a better position to confront and address issues of unequal power relations in
local society, and the politics and practice of exclusion and discrimination (Uvin
2004). Others have argued that the continuation of world poverty should be
viewed as a violation of human rights, and by doing so public action can be
mobilized against the governments of democratic countries for the adoption of
more pro-poor policies (Sengupta 2005; Pogge 2005). In practice, the HRBA has
been variously used by international agencies and civil society organisations.
These include as a set of normative tools on which development strategies are
based; as a set of instruments with which to develop assessments, checklists and
indicators against which interventions can be assessed; as a component to be
integrated into programming; and as the underlying justification for interventions
aimed at strengthening governance and institutions (Nyamu-Musembi and
Cornwall 2004).
Although the HRBA was gathering some momentum in the 1990s and the
early 2000, its popularity was restricted to a handful of UN agencies (e.g.
UNICEF, UNDP), bilateral aid agencies (e.g. Norwegian Norad, British DFID)
and international organisations (e.g. ActionAid, CARE). The claim that poverty
persists partly because the poor do not enjoy legal rights (and that over three
billion people currently live without legal protection), popularised the legal
empowerment approach that evolved parallel to the HRBA discourse. And
7
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
considerable momentum was generated with the establishment of the Commission
on Legal Empowerment of the Poor (CLEP) in 2005. The informal sector
suddenly returned to being the focus of research and policy attention again,
including the range of problems faced by the poor who are often confined to, and
operate within, the informal economy. Thus the LEP approach began highlighting
the local complexities and nuances of land reforms and peasants rights; how
“formalisation” (including enforcement of property rights in the informal
economy, providing legal identities and titles of ownership) can benefit the
poorest of the poor and marginalised groups, particularly women; the role and
status of certain unique and flexible traditions of collective rights among
indigenous groups; and the capacity of the formal judicial system to live alongside
customary law, promote socio-economic equity and prevent elite capture.
The international discourse on the relationship between law and
development was, for many decades, largely centred on improvements of the
content of laws, the working conditions and facilities available to lawyers and
strengthening the capacity of state institutions. The World Bank and other
organisations continue to believe that rule of law is directly related to per capita
GDP, and that citizens will benefit from economic growth when their
governments uphold the rule of law. Numerous critics of this emphasis on the rule
of law (Golub 2003; Carothers 2003) highlight the uncertainty of economic and
political benefits (e.g. democracy) that result from improvements in the rule of
law. The LEP approach, in contrast, has emphasised the provision of, and access
to, legal and institutional tools by the poor. An influential report by the
8
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
Commission on Legal Empowerment of the Poor (hereafter CLEP report) defined
LEP as ‘the process of systemic change through which the poor and excluded
become able to use the law, the legal system and legal services, to protect and
advance their rights and interests as citizens and economic actors’ (CLEP 2008, 3).
Rather than simply providing advice, lawyers were encouraged to view the poor
as partners, so as to encourage people to participate directly in influencing public
policy and priorities. Legal empowerment also places emphasis on the use of nonjudicial strategies, which may in certain situations be better able to address the
concerns of the poor. Laws in many poor countries typically work against the poor,
and hence the LEP approach advocates a better integration of law into a broader
package of development-related activities (Golub 2003, 3-4) by placing emphasis
on the ‘use of legal services and related development activities to increase
disadvantaged populations’ control over their lives’ (Ibid.).
The CLEP Report, which proposed a framework of legal empowerment
based on four pillars – access to justice and rule of law, property rights, labour
rights and business rights, argued that the main goal of a LEP approach is to
protect poor people from injustice (e.g. wrongful eviction, expropriation, extortion,
and exploitation) and offer them ‘equal opportunity to access local, national, and
international markets’ (CLEP 2008, 28). Not surprisingly, the pillar pertaining to
access to justice and the rule of law was considered to be the most important,
providing an enabling framework for the remaining three pillars. Accordingly, the
LEP approach claims that large parts of the developing world must implement
reforms aimed at ensuring the right to legal identity (e.g., registration at birth),
9
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
repealing or modifying discriminatory laws, strengthening the work of civil
society organizations, supporting alternative dispute resolution mechanisms,
supporting paralegals, improving the workings of the police force, creating
accessible judicial and land administration systems that recognize and integrate
customary and informal legal procedures and focusing on the legal empowerment
of specific groups such as women, refugees, indigenous populations and internally
displaced persons (CLEP 2008, 5-6; 31-34).
There are many benefits of pursuing HRBA and LEP in the fight against
poverty. These approaches highlight the distinct character and normative force of
law, the equal manner in which legal standards are applicable to all actors, the
potential use of codified international legal standards to criticise government
action or inaction and the ability to recognise the state as the primary duty bearer
in promoting human development. The HRBA and LEP approaches have been the
subject of substantial praise as well as strong criticism. I have discussed these in
detail elsewhere (Banik 2009; 2010). In the context of this essay, two broad sets
of criticisms appear particularly relevant.
The first set of issues relate to the allegation by several scholars and
development practitioners (especially at country levels) that these approaches are
mainly rhetorical (rights and empowerment are proclaimed) rather than
forwarding concrete advice for the practical implementation of development
policies (Eide 2006; Banik 2010). Related to this is the claim that the approaches
lack conceptual rigour and virtually all current efforts can be loosely labelled as
“rights-based” or aimed at promoting empowerment of people living in poverty.
10
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
As Darrow and Tomas (2005, 537) observe, ‘continued credibility of rights-based
approaches demands a higher degree of conceptual rigor and clarity than has
prevailed in the past, along with a frank appraisal of their relative strengths and
limitations’. Many development practitioners, including the staff of NGOs and
UN agencies believe that the human rights community is preoccupied with events
taking place in UN headquarters and donor country capitals, where good
intentions and appealing buzzwords are reiterated without there being
appreciation for ground level realities. Developing country governments often pay
lip service to human rights language, include binding obligations, and are
reluctant or unwilling to push for adoption and closer integration of
internationally ratified human rights instruments into national law and policy
making. Others point to the obsession of the international community to propose
new buzzwords, rather than concentrating one how established approaches can be
improved. Hence Sengupta (2008) argues that the LEP approach builds on human
rights principles and will have most impact if it is viewed as a sub-set of the
HRBA, rather than an independent set of strategies for developing countries to
pursue.
The second broad set of criticisms relate to the challenge of translating
global theory into national and local practice. These mainly relate to the lack of
conceptual clarity of both approaches at programmatic levels – where anti-poverty
policies are implemented. There are concerns that HRBA and LEP do not provide
adequate tools for the actual design and implementation of required programmes
and projects. In spite their theoretical underpinnings, the HRBA and LEP have
11
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
proved difficult to operationalise in practice, particularly in relation to socioeconomic rights such as those related to food, water and health. This is because,
as Alston (2005, 802) argues, HRBA criteria are much too often ‘expressed at a
level of abstraction and generality that is not uncharacteristic of some human
rights discourse but that is likely to seem abstract, untargeted, and untested to the
community of development economists’. Consequently, policymakers and those
implementing public policy do not believe that the HRBA provides concrete
advice and guidance on how to address complex challenges and trade-offs on the
ground. A crucial step to understanding and thereby evaluating the impact that the
HRBA and the LEP can have in relation to specific socio-economic rights to
understand the factors that explain the considerable gap between the international
human rights discourse and instruments on the one hand and the politics of
incorporating the same discourse in national settings. And both HRBA and LEP
tend to underestimate the ability of political actors to ignore, bypass or selectively
implement judicial recommendations and verdicts.
Despite the obvious merits of the above criticisms, and I have often been
critical of both approaches in my previous work, there is emerging evidence to
suggest that HRBA and LEP can indeed be usefully applied in the fight against
poverty. Using the case of the social and judicial activism on the right to food in
India, I aim to illustrate some concrete successes that have been achieved using a
combination of the strategies advocated by HRBA and LEP.
12
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
PART 2:
SOCIAL AND JUDICIAL ACTIVISM ON THE RIGHT TO FOOD IN
INDIA
While there is a widespread belief that the home of the malnourished child is subSaharan Africa, all available data clearly show that the worst affected region is
South Asia. The enormity of the problem is borne out by the fact that India
accounts for one third of the world’s undernourished children, every third woman
in the country is undernourished, and 55.3 per cent of Indian women are anaemic.
Moreover, an intergenerational cycle of undernutrition is perpetuated when 22 per
cent of children are born underweight and thus susceptible to numerous infections.
Although there has been some progress in reducing undernourishment, from 240
million in 1990 to 217 million in 2012 (FAO 2012), India ranked 65th among 79
countries in a recent Global Hunger Index; with an estimated 19 per cent of the
population that is undernourished (IFPRI 2012), the country is far from targets
meeting its Millennium Development Goal targets scheduled for 2015. Indeed,
improvements in nutritional status have not kept pace with the country’s
impressive economic growth in the past decade. This stark reality prompted the
Indian Prime Minister to admit in January 2012 that the “the problem of
malnutrition is a matter of national shame” and that the country has not managed
to reduce hunger “fast enough”.2
2
‘Full text of PM's speech at the release of the HUNGaMA Report’, NDTV, 10 January 2012,
http://www.ndtv.com/article/india/full-text-of-pm-s-speech-at-the-release-of-the-hungama-report165450 (Accessed: 01 September 2012).
13
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
The daily presence of food insecurity (difficulties in accessing and
consuming adequate amount of good quality food) facing large groups in the
Indian population – and the more sensational media reports of ‘starvation deaths’
in various parts of the country amidst large amounts of food rotting in storage
houses – has been an issue that has attracted the attention and interest of the media,
civil society organisations, political parties and, in particular, the Indian judiciary.
A main catalyst for litigating economic, social and cultural rights in India was the
series of radical changes undertaken by the Supreme Court since the 1980s, which
popularised so-called public interest litigation (PIL). These initiatives not only
pre-date the legal empowerment approach, but also allow lawyers, civil society
organisations, or any other organisation to petition the court in order to protect
and promote universal human rights. And not only have the requirements of
standing been widened to allow anyone to litigate in the public interest, but fact
finding initiatives by the court have been institutionalised, and the judiciary has
assumed supervisory powers to monitor the implementation of its own orders. The
courts in India have thus experienced a radical transformation of their roles in
safeguarding human rights, especially the right to life (Fredman 2008: 124). The
result has been hundreds of cases concerning the enforcement of economic, social
and cultural rights through the use of PIL. In addition to food, the right to health,
medical care, education, housing and clean and healthy environment, have also
been addressed by the courts through PIL cases (Banerjee et al. 2005; Gonsalves
2008). Despite the ever increasing number of PILs handled by courts in India, one
particular case – related to the right to food – has not only received much national
14
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
and international attention, but has also achieved concrete policy outcomes. This
is the focus of the ensuing sections of this essay and illustrates the
operationalisation of the HRBA and LEP in practice.
Judicial activism on hunger and starvation deaths: 1980s—1990s
The Indian courts have a long history of intervening on matters related to food
security and drought relief. In the mid-1980s, the media began reporting on the
drastic rise of starvation deaths and related suffering such as forced migration, and
child sales. The eastern state of Orissa was particularly singled out in such reports,
with one particular district in Orissa – Kalahandi (literally meaning ‘black pot’)
receiving the most media and political attention. Two social workers from
Kalahandi district filed a PIL in the Supreme Court in October 1985 and drew
attention to large groups of people facing destitution and starvation as a result of
recurrent droughts and resulting food shortages.3 The petition claimed that antipoverty programmes implemented by the Orissa government had failed to deliver
benefits, and that large groups of people in the district were facing starvation and
destitution. A similar PIL was filed in the Supreme Court in 1987 by the Indian
People’s Front (a breakaway faction of the Communist Party of India), which
alleged that destitution and starvation deaths had become a regular feature of
Kalahandi and neighbouring districts due to the callous attitude and negligence of
the Orissa government.4 It requested the Court to investigate the Orissa
3
PIL Writ Petition (Civil) No. 12847 of 1985, Kishan Pattnayak and Another vs. the state of
Orissa, Paragraph 1 (quoted in Currie 1998: 423).
4
Writ Petition (Civil) No. 1081 of 1987, the Indian People’s Front through its Chairman,
Nagbhushan Patnaik vs. State of Orissa.
15
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
government’s inaction in these districts highly vulnerable to starvation. Upon
receipt of the two petitions, the Supreme Court appointed a district judge to
conduct an inquiry. The ensuing report, submitted to the Court in 1988, did not
establish any cause to criticise the Orissa government’s efforts and the judge
concluded that no starvation deaths had taken place. This conclusion, however,
was highly criticised by the petitioners and the media, and even the Supreme
Court distanced itself from the report, concluding in 1989 that there was
considerable evidence the starvation deaths had indeed occurred in Kalahandi, and
the Orissa government was instructed to be more active and responsive to the
needs of households vulnerable to extreme poverty and hunger.5
Through the late 1980s, similar PILs were filed in the Orissa High Court,
highlighting cases of bonded labour, forced migration of large groups of people
fleeing from starvation, child sales, and exploitation of indigenous groups by
village elites.6 In early 1992, the High Court passed its final ruling on these cases
and concluded that its own investigation had established several cases of
starvation deaths and hence the Orissa government was directed to pay
compensation to the families of the deceased. The Court was highly critical of the
implementation of social welfare programmes, and held two senior civil servants
accountable for failing to take quick and appropriate action to prevent human
suffering in Kalahandi and adjoining areas.
The immediate impact of the judicial interventions was a drastic increase
in media attention on Kalahandi and pressure on the Orissa government to react.
5
Order, Supreme Court of India 1989, Paragraph 7.
Case No. 3517/88 filed on 17 October 1988, Bhawani Mund vs. State of Orissa; Case No. 525/89
filed in 1989, A. C. Pradhan vs. State of Orissa.
6
16
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
Indeed, the Orissa High Court’s ruling was the first time in history that a public
authority in Orissa had concluded that starvation deaths in Kalahandi had actually
occurred. Successive ruling parties since 1985 had denied all such claims. The
adverse publicity on the state of governance in Orissa that followed the Court
rulings that began in the late 1980s appeared to also have an impact in the
elections, with the ruling (Congress) party being voted out of office in 1990.
However, when the Orissa High Court confirmed starvation deaths in Kalahandi
in 1992, the new government formed by the Janata Dal party began blaming the
previous government for its failures instead of initiating radical change to address
vulnerability to hunger in starvation-prone areas. And despite the fact that reports
of starvation deaths in Kalahandi and other districts in Orissa continued to appear
in local and national dailies right throughout the period this government was in
office, the major political actors in charge of the state largely ignored judicial
recommendations to radically reformulate guidelines for improving administrative
response to starvation (Banik 2007). Although a handful of civil society
organisations and concerned citizens kept the starvation deaths issue alive in the
media, in addition to petitioning the courts and quasi-judicial organisations such
as the National Human Rights Commission, the Orissa government showed little
interest in making drastic changes to its social welfare and drought relief policies.
Thus, although there was considerable media interest in the stories of starvation
deaths taking place in Kalahandi, and the highest levels of the judiciary was
mobilised by civil society organisations and other well-meaning local actors, the
direct impact of these actions on people vulnerable to starvation was negligible.
17
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
Social movements and litigation on the human right to food in India
The 1990s witnessed a growing interest on extreme poverty and food-related
deprivation in the media and political discourse. When major national newspapers
began to publish news articles on starvation deaths in many parts of the country
despite an abundance of food available in government storage houses, the
People’s Union of Civil Liberties (PUCL) – a coalition of fifty-six civil society
organisations – became actively involved in seeking judicial redress on behalf of
households facing destitution and starvation. Using the language of the HRBA,
the Rajasthan branch of PUCL submitted a PIL to the Supreme Court in April
2001 questioning whether the right to life guaranteed under article 21 of the
Indian Constitution also included the right to food.7 The petition requested the
Court to intervene to prevent starvation deaths that were taking place despite
surplus food stocks in possession with the central and state governments. It further
asked, ‘Does not the right to food which has been upheld by the apex Court imply
that the state has a duty to provide food especially in situations of drought to
people who are drought-affected and … not in a position to purchase food?’8
Using the human rights language of duty-bearers who must act to respect,
protect and fulfil the rights of the poor, PUCL identified central and state
governments in India as the main duty bearers with the obligation to protect the
right to food. It further argued that these duty bearers must be held to account for
their failure to assist individuals and households facing acute hunger and
7
Writ Petition (civil) 196 of 2001, submitted in April 2001.
‘PUCL petitions Supreme Court on starvation deaths,’ PUCL Bulletin, July 2001,
http://www.pucl.org/reports/Rajasthan/2001/starvation_death.htm (Accessed: 10 September 2010).
8
18
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
starvation while large stocks of food remained hoarded in government storage
houses. The petition also requested the Court to push the government to address
the implementation shortcomings of the country’s main social security
programmes such as Public Distribution System (that provides subsidised food
and other items to poor households), and ensure that vulnerable groups in the
population (e.g. impoverished women, children and the aged) were adequately
covered and targeted by public policy.
The Supreme Court is yet to award a final verdict in the case, but since
2001, it has held hearings at regular intervals and issued over one hundred very
detailed ‘interim orders’ that are considered applicable as law until the case is
closed. While the PIL was initially brought against the government of Rajasthan,
thanks to civil society activism and mobilisation, it now applies to all state
governments in India. Further, the case does not only address the problem of
hunger, but also issues of food insecurity, urban destitution, right to work,
transparency and accountability in government and the implementation of social
security programmes.
The case is currently coordinated, on behalf of the petitioners, by the
Human Rights Law Network – an organisation of lawyers and social activists
working to use the legal system to advance human rights.9 Despite hundreds of
PILs filed every year, this particular case has been the Indian judiciary’s most
prominent attempt to make economic, social and cultural rights justiciable. In the
process the case has received widespread attention both at home and abroad. In
9
The case is technically known as PUCL vs. Union of India and others (Writ Petition [Civil] No.
196 of 2001).
19
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
the following sections I will discuss four main categories of impact that this ongoing case in the Supreme Court has had, followed by a separate section on the
recently enacted National Food Security Bill.10
First, some of the most important anti-poverty programmes in the country
were converted into legal entitlements, i.e. the government could not stop or make
major changes to these without the approval of the Supreme Court. For example,
the Court delivered a landmark judgement in November 2001 on eight specific
programmes or schemes with a food component. Among its recommendations, the
Court ordered full implementation of the Public Distribution System that offers
subsidised food to below poverty line households, converted a previously
voluntary programme (Mid-Day Meal Scheme) to provide cooked meals at
schools to an obligation on the part of all states, and ordered improved
implementation of the Integrated Child Development Services, which provides
assistance to pregnant and nursing women and children, and other programmes
aimed at helping impoverished families whose primary breadwinner has died.
With this particular order, the Court converted the benefits of the eight
programmes into legal entitlements and hence provided all programme
beneficiaries with the ability to claim benefits as a matter of right, and seek
judicial redress if such rights were violated (Right to Food Campaign 2005, 10).
This particular order together with previous and subsequent interim orders has
thus given rise to a set of ‘umbrella orders’ (applicable to all relevant social
programmes) and more specific orders relating to the functioning of specific
10
This section has benefited from personal communication with Kavita Srivastava, the National
General Secretary of the People’s Union for Civil Liberties (PUCL), during her visit to Stanford
University in November 2013.
20
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
social protection programmes. These umbrella orders cover numerous issues
including the identification of agent(s) or agency with responsibility for
compliance (mainly Chief Secretaries in the various States) and village councils
(or Gram Sabhas) that can demand accountability by accessing all relevant
information; monitoring the functioning of government programmes and
investigating misuse of funds.11
Second, various levels of government in India have quite regularly been
held to account by the Supreme Court. For example the highest civil servant in
each state (the Chief Secretary) is now required to be present during certain
hearings in order to put forward the government’s views on food security. And the
Court has established a new mechanism for ensuring compliance with, and the
monitoring of, its orders by appointing two commissioners in 2002 to monitor and
report on the implementation of a whole range of public welfare programmes. The
commissioners were given the power to investigate potential violations of the
interim orders and to demand redress from the political and administrative
leadership, with the full backing of the Supreme Court.12 In addition to providing
periodic reports to the Court, the commissioners are authorised to seek responses
from State governments, investigate complaints from civil society organisations
and set up relevant enquiry committees (Right to Food Campaign 2005, 7-8). A
major impact of these initiatives has been the gradual increase in the amount of
funds allocated by State governments for improving coverage of social security
programmes within their territories (Right to Food Campaign 2012).
11
12
Interim order, Supreme Court, 08 May 2002.
Interim order, Supreme Court, 29 October 2002.
21
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
Third, essential services provided by the government are now becoming
legal rights as a result of this on-going case. The impact is not only confined to
the right to food, but there have been important spill over effects in relation to
other social and economic rights including the right to education and the right to
work. Thus, the orders issued by the Supreme Court on the right to food case so
far have catalysed the Indian government to enact some very progressive
legislation on other socio-economic rights.
Fourth, the actions of the Supreme Court and the ensuing interim orders
have encouraged regional (state) governments in India to enact legislation of their
own in order to improve service delivery. One prominent example is Chhattisgarh,
a state which ranks low among other Indian states in relation to human
development, where the government successfully enacted the Chhattisgarh Food
Security Act in December 2012 with the aim of ensuring ‘access to adequate
quantity of food and other requirements of good nutrition to the people of the
State, at affordable prices, at all times to live a life of dignity’. With several
innovative features related to targeting of vulnerable food insecure households,
availability and distribution of various types of food, and speedier mechanisms for
service delivery, this piece of legislation has been hailed as a major success story
amidst the general reluctance of state and national governments in India to abide
by the directions of the central government and the Courts that are aimed at
improving food security.
One of the most important impacts of the right to food movements has
been the recent enactment of national legislation on food security, which was a
22
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
direct result of the growth and popularity of a human rights-based approach to
development in the national political discourse.
Human Rights-based policy intervention: The National Food Security Bill
As a direct result of the ongoing right to food case in the Supreme Court, and
following decades of civil society and judicial interest on food security, the Indian
parliament finally passed the National Food Security Bill (hereafter NFSB) in
August 2013. This was the culmination of a series of promises by the central
government in New Delhi, led by the United Progressive Alliance, since being
voted back to power in 2009 and concerted efforts by civil society organisations
to legislate a bill specifically focused on food security. The NFSB was also the
product of several years of deliberation, often at the prodding of the National
Advisory Council headed by the President of the Congress Party, Sonia Gandhi,
and consisting of several well-known academics and civil society activists
working on food and nutrition-related issues.
Despite the delays in enacting the legislation, and the innumerable
compromises in the final draft, the NFSB has been hailed by many societal and
political actors as a watershed. Some of the features of the Bill include the
ambitious goal of providing up to 75% of the rural population and up to 50% of
the urban population of monthly foodgrains per person or per household. There is
a focus on exclusive breastfeeding of children below six months while for
children between 6 months and 6 years, the Bill provides for a free ageappropriate hot-cooked meal. And for children aged 6-14 years, one free mid-day
23
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
meal every day (except on school holidays) will be provided in all government
and government-aided schools up to eight grade. Similarly, pregnant women and
nursing mothers are entitled to a free meal every day during pregnancy and six
months after childbirth, and there are provisions for basic maternity benefits.
Another progressive feature aimed at promoting empowerment of women entails
that women of eighteen years of age or above will be considered to be the
household head when ‘ration cards’ (that serve as proof of identity and status as
programme beneficiary) for subsidised food programmes are issued. A relatively
new feature to the Indian system of social protection – inspired by the conditional
cash transfer models successfully implemented in Brazil and Mexico – is the right
to receive food security allowance (or cash transfers) in situations when ‘the
entitled quantities of foodgrains or meals to entitled persons’ are not available
(NFSB 2013, Sec. 13.).
The main responsibility for the implementation of the NFSB provisions
belongs, however, to state governments, ‘in accordance with the guidelines,
including cost sharing, between the Central Government and the State
Governments in such manner as may be prescribed by the Central Government’
(Ibid., Sec. 7). In addition, state governments are expected to constitute a 7member State Food Commission for monitoring and reviewing the
implementation process, with at least two women members and one member each
from traditionally disadvantaged communities (Scheduled Caste and Scheduled
Tribe communities). The NFSB also provides for the redress of complaints and
grievances, including call centres and help lines.
24
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
From a HRBA perspective, the most important step forward is the
recognition in the Bill of explicit duties or ‘obligations’ of various levels of
government for the promotion of food security. Thus, the main obligation of the
central government is to provide foodgrains (or adequate funds) to state
governments at specified prices. State governments, however, have the main duty
to implement the provisions of the Bill together with local government institutions,
and may extend the level of benefits with additional resources from their own
coffers.
Despite the obvious benefits of legislating the right to food and
guaranteeing access to food to large sections of the population, the NSFB has
been heavily criticised by opposition political parties and other societal actors,
including PUCL. These include the following: lack of focus on nutritional rights;
ambiguity in terms of identifying food insecure households; the enormous costs
associated with covering the very large group of proposed eligible beneficiaries;
the persistence with flawed social protection programmes (such as the Public
Distribution System) without undertaking major reforms; the reluctance of state
governments to bear additional costs and be accountable to the central
government for implementation failures; and fears that the central government
will discriminate against states controlled by opposition parties. Despite these
very valid concerns, the NFSB appears to be a step in the right direction, and if
properly implemented, can make a major impact in improving economic, social
and cultural rights for hundreds of millions of people in India.
25
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
CONCLUDING REMARKS
The Indian case provides a useful prism to test the added value of applying a
human rights and legal empowerment lens to addressing the pressing concern of
chronic and acute hunger that affects large sections of the global population.
Although the rulings of the Indian Supreme Court and lower level courts in the
1980s and 1990s helped to focus considerable media attention on certain
starvation-hit areas of India and put several state governments on the defensive,
there was very little political and administrative commitment to follow up the
judicial recommendations. It is now widely recognised that simply a focus on law
and judicial institutions is inadequate for fostering and promoting economic
development and well-being. In addition to legal empowerment, there is also need
for genuine political empowerment where citizens are not only aware of their
rights, but also in a position to successful claim them.
The added value to pursuing a HRBA in relation to human development
are numerous, and include a focus away from viewing development as charity and
a specific outcome or achievement to one where development interventions are
evaluated on the process by which they empower the poor. The right to food
movements in India (but also elsewhere such as Brazil and South Africa) have
indeed documented some impressive results, particularly in terms of concrete
policy outcomes. And although numerous challenges remain, the Indian
experience provides some useful insight into the conditions under which a focus
on rights and empowerment can actually be successful in fighting poverty.
26
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
An important criterion for success is when people living in poverty are
better identified and targeted by public policy. Undertaking this task in a country
as large and diverse as India is not an easy task, as previous experiences with
social protection programmes have shown. Nonetheless, the on-going right to
food case shows that civil society and the judiciary have provided valuable
suggestions and recommendations to administrators and political leaders
regarding the use of alternative methods for identification and targeting of
beneficiaries. Many of these suggestions now form an integral part of the NFSB,
which include recognising the status of women as household heads and the use of
identity cards (increasingly with biometric information) for providing food rations
or cash transfers and checking the abuse of resources. The challenges that
continue to exist include extending coverage to remote areas of the country and
limiting political clientelism where politicians take undue credit for distributing
resources. Moreover, greater awareness is required among all groups in society on
what it means to be a right holder and a duty-bearer, and how one can effectively
claim one’s rights and carry out one’s duties.
Another criterion of successful rights and empowerment-based approaches
is when public policies focus on daily vulnerabilities, rather than being
emergency-oriented responses. The traditional Indian response to past food
shortages and allegations of starvation deaths has usually been crisis-induced. The
political leadership is quite successful in mobilising efficient administrative
response to clearly visible and substantially large crises such as resulting from
floods and cyclones. In contrast, the less visible impacts of recurrent droughts and
27
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
hidden hunger do generate the same type of urgent political-administrative
response. This is where the NFSB, if implemented well, can make a major
difference by addressing the problems of chronic hunger by guaranteeing
individuals and households access to basic amounts of food and essential
commodities either for free or at affordable prices.
Another key ingredient to the NFSB’s success will be how well its
provisions and goals are understood and implemented by civil servants. The
successful application of a HRBA requires that the attitudes and practices of civil
servants change from arrogance to one of genuine commitment and service to
those they serve. This is easier said than done, and some of the major social
protection programmes implemented in India would work even better if
corruption and leakages were kept in check and officials were more motivated in
their jobs and better understood their functions as duty-bearers. What, then, does
it mean to be a duty bearer? The evidence from India shows that politicians and
bureaucrats resort to a considerable amount of blame-game whenever they are
criticised for programme failures. Moreover, most power holders in India or other
developing countries do not understand the concept of a duty bearer in the human
rights sense. The general attitude remains one of providing charity to the masses
in the form of hand-outs, which are distributed for gaining popularity and votes
before elections. The problems of undernutrition and starvation in many Indian
states (e.g. in Orissa and Madhya Pradesh) are highly prevalent among indigenous
groups (often referred to as ‘tribals’), who are often the targets of social,
economic and political discrimination, exclusion and marginalisation.
28
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
A frequent criticism of development programmes is that they often are
heavy top-down in character, decided by power holders far removed from groundlevel realities and without consultations with intended beneficiaries. While the
right to food movement in India did not involve a mass mobilisation of the poor, it
is nonetheless a good example of civil society organisations pooling their
resources and organisational skills to garner support and attention on the failure of
public policy. Here, the role of lawyers working for the rights and empowerment
of the poor has been crucial, as exemplified by the active contribution of members
of the Human Rights Law Network, who have represented the petitioners of the
right to food case in the Supreme Court, and have been credited for pioneering
work in the field of public interest litigation in India.
In the past few years, India has witnessed a growth in social movements
that have initially focused on specific topics (e.g. corruption) and later
metamorphosed into political entities. The Aam Admi Party (AAP) that started off
as an anti-corruption movement, and which has recently formed the government
in Delhi, is a good example of a movement that has exerted considerable political
influence with the backing of India’s middle class. It remains to be seen whether
and to what extent the AAP can exert political influence and continue to
champion the rights of the poor. The sad reality is that in many parts of the
developing world, including India, opposition political parties have simply
performed an adversarial function in order to gain power, and then largely ignored
these very same causes when they have assumed positions of authority. The
HRBA and LEP approaches require that in addition to media and civil society
29
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
organisations, political parties must revamp their organisational and incentive
structures and work towards promoting increased answerability and accountability
of state institutions. In other words, governments must be forced to prioritise
development efforts in, and resource allocation to, regions irrespective of personal
and political ties.
Similarly, the functioning and influence of oversight agencies such as the
Ombudsman and Human Rights Commission are crucial. The provisions in the
NFSB for food commissions with the power to address complaints and abuse of
resources at local levels will only have a major impact if these institutions and
their office bearers are given adequate resources and able to work independent of
political interference. While the judiciary can hold authorities to account for
failing to protect the rights of the poor, the verdicts of the courts must have teeth.
Public interest legal representation on the right to food in India, Brazil and South
Africa show that the use of the legal system has not only advanced the right to
food in these countries but also strengthened other economic, social and cultural
rights. However, for judicial interventions to have a major impact, the actions and
recommendations of the courts must be taken seriously by the political and
administrative leadership. There are often no strict sanctions for non-compliance,
and many governments around the world routinely ignore or sidestep court orders.
Rhetorical statements and appealing buzzwords are increasingly commonplace in
development and policy circles. The urgency of world poverty requires not just
talk, but genuine political commitment and concrete action.
30
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
REFERENCES
Alston, P. (2005) ‘Ships Passing in the Night: The Current State of the Human
Rights and Development Debate Seen Through the Lens of the Millennium
Development Goals’, Human Rights Quarterly 27: 755-829.
Banerjee, U. D., Naidoo, V., and Gonsalves, C. (2005) ‘The Right to Food
Campaign in India: A Case Study of Entitlement-Oriented Rights-Based
Strategies Used to Reclaim the Right to Food for Vulnerable and
Marginalized Groups’, in U. D. Banerjee (ed.), Lessons Learned From
Rights-Based Approaches in the Asia-Pacific Region, Bangkok: UNDP and
OHCHR.
Banik, D. (2007) Starvation and India’s Democracy, London: Routledge.
Banik, D. (2009) ‘Legal Empowerment as a Conceptual and Operational Tool in
Fighting Poverty’, Hague Journal on the Rule of Law, 1(1): 117-131.
Banik, D. (2010) Poverty and Elusive Development, Oslo: Scandinavian
University Press.
Birchfield, L. And Corsi, J. (2010) ‘Between Starvation and Globalization:
Realizing the Right to Food in India’, Michigan Journal of International
Law 31: 691-764.
Carothers, T. (2003) ‘Promoting the Rule of Law Abroad: The Problem of
Knowledge’, Rule of Law Series working paper, Washington DC:
Democracy and Rule of Law project, Carnegie Endowment for International
Peace.
CLEP (2008) Making the Law Work for Everyone, volume 1, New York:
Commission on Legal Empowerment of the Poor, UNDP.
Darrow, M. and Tomas, A. (2005) ‘Power, Capture, and Conflict: A Call for
Human Rights Accountability in Development Cooperation’, Human Rights
Quarterly 27: 471–538.
Jonsson, U. (2003) ‘A Human Rights-Based Approach to Programming
(HRBAP)’, Human Rights-Based Programming Unit, UNICEF.
Eide, A. (2006) ‘Human Rights-Based Development in the Age of Economic
Globalization: Background and Prospects’ in B. A. Andreassen and S. P.
Marks (eds), Development as a Human Right: Legal, Political, and
Economic Dimensions, Cambridge, Mass: Harvard University Press.
FAO (2012) State of Food Insecurity in the World 2012, Rome: Food and
Agricultural Organisation of the United Nations.
Fredman, S. (2008) Human Rights Transformed: Positive Rights and Positive
Duties, Oxford: Oxford University Press.
Golub, S. (2003) ‘Beyond Rule of Law Orthodoxy: The Legal Empowerment
Alternative’, Working Paper No. 41, Rule of Law Series, Washington DC:
Carnegie Endowment for International Peace.
Gonzalves, C. (2008) ‘The Indian Supreme Court, ESC Rights and the Right to
Food’, paper presented at the Human Rights and Extreme Poverty
31
Published in Patrick Keyzer, Vesslin Popovski and Charles Sampford (eds.) Access to
International Justice, London: Routledge (2014)
Conference on ‘Eradicating Poverty: Development and Empowerment of
the Poor’, Kolkata, 5-6 December 2008.
IFPRI (2012) Global Hunger Index 2011: The Challenge of Hunger – Taming
Price Spikes and Excessive Food Volatility, Washington DC: International
Food Policy Research Institute.
NFSB (2013) ‘The National Food Security Bill’, Government of India, Available
at:
http://www.thehindu.com/multimedia/archive/01404/National_Food_Secu_
1404268a.pdf (Accessed: 25 January 2014).
Nyamu-Musembi, C. and Cornwall, A. (2004) ‘What is the “rights-based
approach” all about? Perspectives from international development
agencies’, Working Paper 234, Institute for Development Studies,
University of Sussex.
OHCHR (2006) Frequently Asked Questions on a Human Rights-Based Approach
to Development Cooperation, Geneva: United Nations, Office of the High
Commissioner for Human Rights.
Sengupta, A. (2005) ‘Human Rights and Extreme Poverty’, Report of the UN
Independent Expert on the Question of Human Rights and Extreme Poverty,
Economic and Social Council, E/CN.4/2005/49.
Sengupta, A. (2008) ‘The Political Economy of Legal Empowerment of the Poor’,
in D. Banik (ed.), Rights and Legal Empowerment in Eradicating Poverty,
Farnham: Ashgate.
Pogge, T. (2005) ‘World Poverty and Human Rights’, Ethics and International
Affairs, 19(1): 1–7.
Right to Food Campaign (2005) ‘Supreme Court Orders on the Right to Food: A
Tool for Action’, Available at:
http://www.righttofoodindia.org/data/scordersprimer.doc (Accessed: 04
October 2010).
Right to Food Campaign (2012) ‘Right to Food Campaign’s Critique of the
National Food Security Bill 2011’, March 2012, Available at:
http://www.righttofoodindia.org/data/right_to_food_act_data/events/March_
2012_general_note_final_18_february_2012.pdf (Accessed: 16 October
2012)
UNDP (2000) Human Development Report 2000, UNDP, Oxford University
Press.
Uvin, P. (2004) Human Rights and Development, Blommfield, Conn.: Kumarian
Press.
32